Muhammad Imran (Petitioner) VS Province of Sindh & Another (Respondent)

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IN THE HIGH COURT O F SINDH KARACHI

{ Prcsent:

Mr, lustice Mohammail Katim Khan Agha Mr. lustice Arshail Hussain Khan-

CONSTITUTION PETITON NO. 7503 OF 2022

Petitioner: Mohammad Imran s/o Muhammad Rahim Sawati through M/s.

Mehmood A. Qureshi and Jamshed Iqbal, Advocates

Respondents /State: The State through Barrister Zeeshan Adhi, Additional Advocate General Sindh.

On Court Notice: Mr.Ghulam Nabi Memon IGP Sindh Mr.Saeed Ahmed Mangnajo, Home ;i Secretary, Govemment of Sindh Mr.Faisal Bashir Memon, SSP West Date of Hearing: 72.12.2022

Date of Announcement of 1.6.12.2022 Reasons:

o RDER Mohammed Karim Khan ACha I The petitioner has challenged Order No:SO(JuDL.I| /tID/6-3/2On dated 01.12.2022 issued by Home Sectetary Govemment of sindh whereby the petitioner and four others were ordered to be detained under the Maintenance of Public order 1960 (MPO) for 3 months (the Order).

2.Learned counsel for the petitioner has contended that this court has jurisdiction to hear this petition in its constitutional iurisdiction; that there is no material to justify the order available with the concerned authorities; that any such material is vague, in general terms, is based on coniectules, presumptions 'a and surmises and cannot stand the test of judicial scrutiny; that the Home secretary failed to apply his mind in determining whether or not to issue the Order; that the Order is based on malafide and for the sole purpose of keeping the petitioner and the other four in custody despite them being acquitted in the Parveen Rehman murder case by this court vide iudgment dated 21'11'2022 and on account of the media pressure arising following the acquittal of the Petitioner and the four others; that the Order is in violation of Articles 4, 9,10 and 10(A) of

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the Constitution and as such the Order should be declared as illegal having been -( passed without lawful and thereby be set aside/skuck down. In support of his contentions he has placed reliance on the cases of Federation of Pakistan through Secretary, Ministry of Interior, Islamabad Vs. Mrs, Amatul f alil Khawaja and others (PLD 2003 Supreme Cowt 442), Liaquat Ali Vs. Government of Sind tfuough Secretary, Home Department and another (PLD 1973 Karachi 78), Arbab Akbar Adil Vs. Government of Sindh through Home Secretary, Government of Sindh, Karachi (PLD 2005 Karachi 538), Dr. Muhammad Shoaib Suddle Vs. Province of Sindh through Secretary Home Depa*ment, Sindh Civil Secretariat, Karachi and another (-1999 P.Cr.L.l. 7a\, Government of Sindh and others Vs. Mst. Najma (NLR 2001 Civil 521), Muhammad Nasim Vs, District Magistrate, Mansehra and 2 others (1997 MLD 1236), Muhammad Abdullah Vs. District Magistrate West, Karachi and others (1988 P.Cr.L.J. 1087), lftat Razi Vs. Government of Punjab and others (PLD 2002 I Lahore 194), Muhammad Shafi Vs. District Coordination Officer, Multan and 5 others (20L1 P.Cr.L.J. 1482), Mst, Sana Jamil Vs, Government of the Punjab through Secretary and 5 others (2016 P.CI.L.J. 424), Asad, Khan Vs. Deputy Commissioner Manshera and others (2016 P.Cr.L.). 1502) and Liaqat Ali Khan Vs. Dishict Coordination Officer, Bahawalpur and 3 others (PLD 2012 Lahore

3.On the other hand learned Additional Advocate General has contended that this court does not have the jurisdiction to hear this petition as an alternate remedy has been provided under S.3 (6) MPO; that the Order has been passed in accordance with law keeping in view the preamble of the MPO, S.3 (1) MPO and the material which was placed on record which fully justified the Order anci as such the Order should be upheld and the petition dismissed. In support of his contentions he has placed reliance on the cases of Sheikh Rashid Ahmad Vs. D.M. Rawalpindi etc., (PLt 2004 Lahore 1221 (FB), Azhar Abbas Haideri Vs. Government of the Punjab and others (PLD 2022 Lahore 278), Behram Vs. Government of Balochistan through Chief Secretary and anothet (2020 YLR 1015), Ameer Hussain Vs. Government of Punjab and othere (PLD 2021 Lahore 6ee).

4, We have heard learned counsel for the Petitioner, learned Additional Advocate General as well as SSP West. ICP Sindh and Home Secretary who appeared in person in order to assist the cout and have also considered the

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relevant material which lead to the issuance of the Order and considered the case law cited at the bar.

5.We note that none of the authorities relied upon by the leamed AAG relate either to the Supreme Court or the Sindh High Court but of other High Courts which are only of persuasive value. The thrust of most of the authorities is that the petitioner should have availed the altemate remedy available to him under S.3 (6) of the MPO before approaching this court in its constitutional jurisdiction. A Division Bench of the Sindh High Court and the Supreme Court have already held that in certain circumstances in a case concerning an order under the MPO or other Preventive detention order under any other statute a petitioner can come directly to the High Court in its Constitutional jurisdiction instead of availing the altemate remedy as provided in the statute, in this case, S.3 (6) MPO. In the case of Dr. Muhammed Shoaib Suddle (Supra) which also concerned an MPO it was held as under;

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"9. ln the frst place it fiay be pertinent to decide prelimirnry objection as to the maintainability of this petition which rons strerutously urged by tle learned A.A.G' He contendtd that section 3(6) of the Ordinance enables the detenu to make representntiort agninst the order of detention and nn alternate renrctly being aonilnble this petition under Atticle 199 of the Constitutiotl could not be entertained. He rclied upon a number of reported decisions of utperior Courts, including the Honournble Supreme Court, zohere discretionary jurisdiction unfut Artirlc 1,99 tras not exercised on the ground that the petitioner should haue at ailed of tlu alternate eficacious remedy ptottitlerl hy Intu He is indeerl correct to the extent that normally existetce of nn alternate eficncious remerly precludes the Court frotn entertnining a Constitutional petition ns is nident ftom the lnngnge of Article 199 itsdf and it is not flecessary to rcfer to tlu precerlents lnil rlou,n by Courts. N eoefiheless it is equally uell-settled that the existence of an alteruate remedy iloes not per se bar the jurtsiliction ol the Court to entettain 4 Constitutional petition but it is rule by which the Court regulates its own iliscretionary jurisdiction. (See Murree Breruery o. Cnpital Depelopment Authon$ PLD 1972 SC 279). This ile is subiect to certaifl zoell-recogniseil exceptions anil it is well'settled l that the existence of an alternate remeily would not bar the maintainability of a petition, inter alia in the folloruing circumstances: --

(i)Wrcn the alternate remedy is not equal eflicncious in terms of speeil anil expense or cannot proride effectizte relief to the petitioner.,

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(ii)Wren the imytgned order is zoithout juisdiction or ultra zrires tlrc poruer conferred upon the functionnnl passing tle same.

(iii)When the order is mala fide.

(it)IMen tlre ortler suffers lrom nfl error of lau nppnrent on its face.

(a)In matterc uhere iletention of a person in custody is questioneil, the Court must pfima facie be satisfieil as to the bona /iiles ot legality of detention, irrespectiae of the retnedies aoailable to the detenu.

6.We have noted that when an appellant is acquitted by this court in a so called high profile case the Government of Sindh (GOS) uses all means possible to detain the acquitted person and defeat the judgment of the Court by detaining the acquitted person under the MPO or some other preventive detention law on _A spurious grounds. Such tactic has already been deployed and exposed by this court in the cases of Mat Aziza Naeem v State (PLD 2021 Sindh 178) concerning Abdul Hameed Bugti's MPO after his acquittal and Ahmed Omar Shaikh V GOS (2022 YLR 217) concerning the MPO issued on those acquitted in the Daniel Pearl murder case where al1 malafide and devious efforts were made by the GOS to ensure that the acquitted accused remained behind bars. The orders by this court as reported tell a sorry tale of such desire to keep acquitted persons behind bars by hook or by crook lor extraneous reasons and thus a misuse/abuse of executive authority. A part from malaJides to keep the acquitted person in jail it is quite apparent that the remedy under the statute as provided under 5.3(6) MPO is completely ineffacious and unable to provide effective relief to the petitioner on account of the already exposed conduct of the GOS' It is in a case such as this where the cout in its constitutional jurisdiction is required to steP in to ensure that justice is done to the petitioner in accordance with the law and the Constilution which commands that the courts Protect the rights of all citizens under the law and in accordance with law as such we find that we have the jurisdiction to decide this petition and proceed to do so'

7.The starting point and chronology of events which led to the Order is the acquittal of the petitioner and other persons mentioned in the Order by this court vide fudgment dated 27.77.22 whereby in essence the petitioner and the other persons named in the Order were acquitted of the charge against them of their involvement in the murder of Ms Parveen Rehman an erninent social worker

connected with the orangi Pilot Proiect (oPP).The petitioner and the others { named in the Order Pursuant to this courts acquittal judgment were accordinglv released from Karachi Central Prison on 22.11.2022 much to the chagrin of the media and some members of civil society.

8.After the release of the petitioners and the others named in the Order on 22 and 23.1,7.2022 the Admin Manager and Chairperson of the OPP respectively wrote to SSP West seeking protection as she and other office workers of OPP felt threatened by the release of the petitioner and the 4 other persons named in the order following their acquittal. Accordingly as conJirmed in court ssP west and IGP Sindh immediately provided the requested protection to the oPP and its Chairperson. At no stage did any person from the OPP request that the petitioner or other any of the 4 persons named in the Order be placed under preventive detention.

) 9. On 24.11,.2022 SSP West wrote a letter to the IGP which is reproduced as under for ease of reference in resPect of the imposition of the MPO on the petitioner and the others;

"OFFICE OF THE

SENNOR SUPERINTENDENT OF POLICE

DISTRICT WEST, KARACHI

NO.SSP/W/RDR / 2165 dated 24.77.2072

The Deputy Inspector General of Police, West Zone Karachi.

SUBJECT:. REOUEST FOR ISSUANCE OF DETENTION ORDERS

FOR A PERSONS ARRESTED IN FIR

NO.104/2013 0r PEERABAD PS UNDER SECTIN 3 OF

M.P.O FOR 90

7.lt is suhmitbd that on 7i.03.2013, Mst: Parueen Rahnun, Dircctor of Orangi Pilot Project (OPP), was shot dead by troo unknown acca*d persons, at 1930 hrs at PukJrtoon Market near main Manghopir road within thc juisdiction of PS Peenbad Distict West Knrarhi, in this rega a cnx dde FIR No. 104fl.013 u/s 302fr4 PPC r/w 7-ATA uas re$stered on the complaint ol Wali Dad, dit'vr of deua*d Partcen Rahman.

2.Duing the murs of inaesligation, foe accaxd persons including the prtncipli accttxd Rahlem Sauati were anested and chalhned in the court of Iaw. ilu Anti-Tenoism Court on 17,12 2021 conuicted all accaxd persons ercept lmrsn Sawati t'or murder of dccea*d Penoeett Rahman and sentenced them to life impisonment whrreas, accuxd lmran Sawati was only *ntenced to seaen-year impisonment for suboerting the intnstigation-and trial The Anti- Tenoisi Cnurlt based tlu contiction on tlu fuct that ztlten tle cont'essional stateffient of a.&sed Raheem Sawati, was rccorded in 2016, it becomes clear that the pinciple accused Rnheem Satoati was threabning deceasd Penueen Rnhnun ti ittcgally occupy thz land in the premi*s of OPP for esttblishing a karate club and latzr on planned to murds the decea*d to get id ofher.

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i.Houteztel on 27.17.2022 the Honorubb High Court of Sindh acquitted all ftv accuxd pernns including the pincipk acca*d Rahcem Sawati, who liaes ight .( across the OPP. offce, might lorce OPP ofice to clo* down.

4.lt is pertinmt to fie tioneil hete that all these accused petsons are harilm ctiminals, who pose graae aail imminent threat to the family of Mst. Peraem Rahman specially her sbter Mst: Aqeela lsmail uho uorks as chairpetson in OPP anil the mtirc staff of Orangi Pilot Proiect. Accoriling to intelligmce report the li/e of the /amily menbers especially het sister Mst.Ageela lsmail ate in ilanget dftet the rclease of accused, S,Eufthennore the release of mmtioneil accused may disturb peace anil tranquility and can cteate seious lata anil oriler problems and sach an act on their part will be highly prciuilicial to the public safety and maintmance of public oilet

6.In the light of the abotv circtmstance, it is thuefore, rcquested that accused 1) Rnheem Sawati, 2) lmran Sawati, 3. Ahmed Kun @ Ahmed Ali @ Papu Shah Kaslmi, 4) Ajmal Afidi 5) Ayaz Sawati should immediately be dttained under Maintenance of Public Order Ordinance, 1960 lor 90 day ot under any other relzuant lnto.

Submitted for kind perusal pleax

SENIOR SUPERINTENDENT OF

) POLICE DISTRICT WEST, KARACHI."

10.The opening 3 paragraphs of the letter reProduced above are of an introductory nature which relate to issues prior to the release of the Petitioner and others/accused after their acquittal by this court and as such are not of huge significance. The fourth and fifth ParagraPhs are of relevance for issuing the Order. It is stated in the letter that the petitioner and the other named persons in the Order are all hardened criminals. However when confronted by the court SSP West conceded that the Petitioner and the other Persons who were named in the Order did not have positive CRO's in respect of any crime apart from the crime which they had all been acquitted of. He did not record any statement from any local person that any of the said Persons were hardened criminals which in any event would only have been oPinion evidence and of no Iegal value. The petitioner himself was only convicted fot 7 yeats for misleading the original investigation so it is hard to fathom how the SSP reached the conclusion that the petitioners and the others named in the Order were hardened criminals. In fact there wa8 no evidenc{material available to him to support this contention.

He then relied on an intelligence report which is reproduced as under;

"INFORMATI ON REPORT DA 23.17.22

Briel Apprehension of Attuck - Family of IaE Pannen Rehman Details: t

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Reportzdty, on 7i March 2013, OPP Directot Parueen Rehman was killzd in the juisdictiin of PS Peerabad, On 72 Nwembet 2022, folbwing accased of this ca* uere acquithd by thz Sindh High Coutt:

1.Ahtrud Khan,

2.Amjad Suati,

3.Ayaz Swati,

4.Abdul Rahim Swati

5.lmran Sruati

It is learnt through soure that thc lcc1lsd arc infamous for their suspicious ciminal actiaitiei and haae *tsere aggressioa / Srudg for the fanily ol late Parueen Rehman wer perusing the cax drc to whbh they uterc detained and rcmained under-triat for a long time. Source reoeabd that the accased may take reoengeful action anil endanger the family pattia arly Ms Aqeela Islmail (sister of-Panben Rehman), residing in the area of Gulistan e lohar. Any attack on the t'amily cannot be ruled out.

In aiew of tlu abot:e, it is rccommendzd that necessary *curi$ measures mny be taken for proAction of t'amily. ln this connection, aboae mentioned accused may be iletaineil in order to prcoent aty untouail inciilmt, CONFiDENTIAL"

t 1.1.. The intelligence rePot is not on the letter head of any particular intelligence agency. It is not signed by any one and bears no stamp of any organization. It is vague, based on presumptions and assumptions and is not supported by the CRO's of the concemed persons. It is completely lacking in any detail whatsoever and could have been written by any one. It even cites the wrong day of acquittal so careless and per functionaty is it. Although the report is dated 23.-l't.2022 in our view we find that it cannot be ruled out that this report was made after the Order once this court had taken notice of this case in otder to boost the justification for issuing the Order especially as it is unsigned and does not even bear any stamp of the concerned organization who issued the report' It is literally on an ordinary blank piece of paper which is accessible to anyone. Furthermore, we have been informed that the rePort came from the special branch of the police which is ultimately under the control of the IGP as admitted by himself in court and as such the so called intelligence report has not even been prepared by an independent body like the IB or the ISI and it appears that the IGP had a conflict of interest in relying on the report. In fact prior to issuing the Order no report ftom any other organizatiory'body was considered by SSP West, IGP or the Home Secretary.

7?. The letter of SSP West goes on to state that the release of the persons mentioned in the order rzay disturb peace and tranquility and can create serious law and order problems.

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13.Significantly, when confronted by the Court h the 9 days since the release of the persorui from iail piot to them being placed in the Order SSP West conceded that the persons named in the Order had not returned to the area of OPP and had not even been seen in the area let alone together. In addition, he conceded that the Persons from the OPP who had requested security (which had immediately been provided by the police) had not informed him that they had received any threat from any of the persons named in the Order by telephone or otherwise or indeed from any other person and that in this 9 day period there had been no untoward incident in resPect of the OPP or its Chairman or any of its staff. Thus, the above paragraph in SSP Wegt's letter was based on presumptions and assumptions alone and no other material.

14.Now let us Pause to consider the logic behind the Home Secretary's decision to issue the Order which appears to be as follows. The persons in the Order had been acquitted in connection with the murder of Ms.Parveen Rehman _a

were hardened criminals (despite not having any previous CRO) and since Ms Parveen Rehman's sister Ms Aquila Ismail had vigorously pursued her sisters case both before the trial court and the appellant court the acquitted persons who were named in the Order would come and take revenge from her despite the presence already of GOS police security hence the need for the Order. If this logic is followed to its conclusion it would imply that in nearly every murder case where the complainant (or even a witness who gives evidence against a convicted accused) pursues the case vigorously against the accused who are convicted at the trial court for serious offences such as murder and target killing and acquitted by the appellant court and the complainant/witness fears reprisals from the acquitted accused the provision of security would immediately be provided and in addition the names of the acquitted Persons would be subject to being placed on the MIJO and hence they would be denied there liberty as they would be further detained after there acquittal' Hence defeating the verv purpose of their appeal which lead to their acquittal which prima facie appears to be in violation of Articles 4, 9 and 10(A) of the Constitution. This however f does not happen in practice, Numerous accused who are eventually acquitted of serious charges such as murder and have CRO's as long as their arm for serious criminal offences are not detained under the MIjO even if the complainant is fearful of reprisals. In fact, in most cases when the complainant expresses his concern to the police rarely is he even given police Protection due to a lack of interest concern or resources. These are the ground realities' In high profile cases

however like Bugti, Ahmed Omer Sheikh and this case, that of Parveen .< Rehaman, cowed down by the pressure of the media and its desire to apPease the same time and again such MPO s are unjustifiably issued malafide without proper application of mind based upon the so called material which is placed before the concerned authorities whose spineless behavior is highly deprecated considering that a Persons liberty is at stake. The witness protection law is simply a paper law which is little used, if at all, and hardly effective in practice'

15.Having dealt with the letter of SSP West the next link in the chain was the AIGP's letter to the IGP dated 25.11.2022 whereby with reference to SSP West's letter detention of the persons mentioned in the Order was sought which shows that no intelligence repolt was attached as referred to by SSP West and no additional information was provided. The next link is the IGPs letter dated 25.11,.2022 (one day later) to the Addl. Chief Secretary Home requesting issuance of a detention order under S.3 MPO against the 5 persons who ended up in the Order whete once again no additional material is provided.

1"6. Six days later without receiving any additional material or calling for any further inquiry, fot example, seeking a rePort from the IB or the iSI or further report from the police whether the said persons were even in the area where the OPP was situate or whether any of the Persons to be placed in the Order had acrually made contact with any member of the OPP in particular Ms Rehman's sister Ms Aqila Ismail by phone, email or otherwise issued the Order after supposediy applying his mind and satisfying himself of the material placed on record to iustify the issuance of the Order which is set out below for ease of referencei

"GOVERNMENT OF SINDH

HOMEDEPARTMENT

ORDER

NO:SO(lUDL.ll)fitD/6j2022: tA\ureas, the lnspector Gmetal of Police, Sindh, Karuchi, oide his letter No.5058-52'A7GP/Ops-SinilWS-77/2022, dateit 25.77.2022, has commuticateil that following fiae persons are hardmeil criminals who pose graae afiil hnfiifleflt thrcat to the lamily of deceaseil Mst. Paruem Rchman [Ex- Director, Orangi Pilot Proiect (OPP)1, especially het sister Mst. Aqila lsmail who work as Chnirperxn in OPP and the entire staff of Orangi Pilot Proiect. Eurthet that there is intelligmce rcPort that the' life ol the /amity memberc of Mst. Parveen Rehman, especially her sister are in dangu and tlu t'ollowing percons fiay disturb peace and trunquility and can deate xious lntt and o er problems and such an act on their pari uill be highly prejudiaal to the public *fety and maintenance of public order, thercfor;, IG Police Sirulh has rccommenileil that they may be detaineil under MPO 7960 for thee (03) months at least:- t

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7.Muhammad Amjad Hussain Khan S/o loottd.

2.Ayaz Ali @ Sawfti S/o Muhammad Shanf.

-{ 3. Ahtrud All @ Papu S/o Qai Abdul Baqi

4.Muhammad Raheem @ Sawati Sto Steed llabfu.

5.Muhammad Imran Sawati S/o Muhawnad Rahim Swaati.

2.AND WHEREAS, the Gooernment ol Sindh on thc basis of request and consiilering the merits of the case is satisfieil that theft is serious apprehension of Public Sa/ety in the interest of public safety anil that titi prcsmce oj aboae acctsed petsons, at any public place is likely to pose graae thrcat to the pubtic safety anil cause brcach of peace and *anquility;

3, AND NOW ITIEREFO RE, in exerci* of the pouerc unilr xction 3(1) of the Sindh Mainteflance of Public Order Otdinance. 1960, the Gowrnment of Sindh has suffcient rmson to belietv that aboae accuxd fu arrested and detained for a peiod of 90 days from tlu date of anest, Theb cltstody shall be placed under the Senior Supeintendent of Gntral Pison, Karachi.

4.T'tuy shall be at liberty tn mal<e a reprc*ntation to the Prcaincial GooenfiEnt against this oder.

HOMESECRETARY

GOIIERNMENT OFSINDH

NO.SO (WL-il)fi{D/5-3/2022 Karuchi, ilateil 07'12'2022"

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77.The persons named in the Order had just been released from prison after being acquitted by this court after serving about 9 years in jail. Since there was no other custody case against them they were entitled to be released under the law. They could only have been further detained under the MPO if the requirements of S.3(1) had been met keePing in view the protections provided bv Articles 4,9,10 and 10 (A) of the Constitution some of which are fundamental rights. For ease of reference S.3 (1) of the MlaO is set out below for ease of reference

"3, Power to anest and detain suspected persons' (1) Government, if eatisfied that with a view to preventing any person from acting in any manner preiudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing direct the arrest and detention in such period as may be specified in the order, and Governmen! if satisfied that for the aJoresaid reasons it is necessary so to do, may, subject to the other prol'isions of this section, extend from time to time the period of such detention for a period not exceeding six months at a time"

18.We find the key word in S.3 (1) MPO to be " satisfaction" and as such the Home Secretary must be satisfied that based on the material placed before him the other consequences referred to in the Order may flow' In our view that standard must be high as no person can be lightly deprived of his right to life and liberty especially if they have already spent 9 years in iail and have been

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acquitted by the appellant couit and at the time of issuing the Order the Govemment of sindh had not even lodged an appeal against acquittal before the Supreme Court and had even not done so by the date of this hearing being over three weeks after the acquittal judgment (even the complainant had we believe even up to now only filed an acquittal appeal against only one out of the 5 persons in the Order and keeping in view the fact that the police were already proving full protection to the OPP and its ChairpersorL the persons sought to be placed in the Order had not been seen in the area of the Opp since their release and no threats had been given by any of the persons to be placed in the order to any member of the OPP including its Chairman and none of them even made any such threats during their trial and long period of incarceration and as, as is well known, each case must be based on its own particular facts ancl citcumstances.

19.In Pakistan the requirement of satisfaction is based on subjective assessment of material as opposed to an objective satisfaction as laid down by the Supreme Court which the High Courts must follow as per the command of the Constitution as was held in the case of Federation of pakistan V Mrs. Amatul Jalil Khawaja (PLD 2003 SC 442) which dealt with prevenrive Detention Orders (PDO's) in great detail and reviewed all the then exiting laws on pDO,s and laid down the principles for the courts to follow in such cases in 2003 and held at P.454 concerning the required level of satisfaction in respect of material which justified a PDO being issued against a person and at P.467 in terms of the test to be applied as under;

"Wc hate carefully examined the respectirre contentions as agitated on behalf of tlrc parties in tfu light of releuant proaisions of Constitution of Islamic Republic of Pnkistan, the Security of Pakistan Act, 1952, tht Qanun e-Slnlmdat Order, 1984 and judicial precedents. It wot d be relerant to ntention here at tltis juncture that out, 6ec ity laws and anti-terrorism enactrneflt are silent to the elfect that AI-Qaeda is a teffotist organization lmtting its netruork at global leael and is a seiolLs threat to nntional/internntional piece, seauity and trnnquilitrl. We haue also perused the ordcr impugned uith care nnd cautiotr. The piuotal question uhich needs ileterminatiotr woulil be as to zulrcthet sufficient inuiminating material justifying the detention of respondents uniler section 3(1Xb) of the Security of Pakistan Act, L952 was aaailable uhich coulil not be appreciateil in its true perspectioe by the learned Single ludge who ereil in substituting his own opinion to that of Federal Gooerament by ffiisconstruiflg the proztisions of section 3 of the Secuity of Pakistan Act, 7952 anil misinterpreting the zoord ,'satisfaction,, as used therein which resulteil in setious miscarriage of iustice? Before tlrc snid. question could be anstoered in this pnrticulnr context rue l1

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have thrashed out alfiost the entire laru aaailnble on the subject, detail whereof is as follorus>-

6.The judicial coflsensu; seems to be as under:-- (i)" An order of preaentiz,e detention lns to satisfy the requirements laid doton by their Lortlships of the Suprenrc Court that is to say (i) the Court must be satisfied that the material be/ote the detaining authority toas such that a reasonable person uoulil be satisfied as to tlre necessity for making the orilet of preaentiae detention (ii) that satisfaction shoulil be established utith regaril to each of the grounds of detention anil if oue of the rcunds is shown to be bad ronexistent or ineleoant the whole order of iletention uoultl be renilereil inaaliil (iii) that initial butilen lies on the iletaining authority to shozo the legality oJ the preoentioe iletettion and (ia) that the detaining authority must place the whole matertal upon which tlrc order of detention is baseil before the Court notuithstanding its claim of prioilege usith respect to any A document the oaliility oJ which claim shall be within the coffipetefice of the Coutt to ileciile, In adclition to these requirements, the Court has fwther to be satisfied, in cases of preaentiae detention, that the order of iletention was made bu the authority prescribeil in the lazo relating to preoefltiae iletention: that each of the requircments of the law rclating to preoefltiae detention should be strictly complieil with; that ,satisfaction' in fact existed zoith regaril to the necessity of preaentiae iletention of the detenu; that the grounils of detention hail been furnished within the perioil presuibeil hy law, and if no such period is prescribed, then 'as soofl as may be,; that the grounils of detention should not be aague and indefinite and shoulil be comprehensiae enough to enable the iletenu to make representation against his detention to the authority prescribed by lazo; that the grounds of iletention that is they are flot inelerant to the aim and object of this law and that the detention shoulil not be for extraneous considerations or for purposes zohich may be attacked on the grounil of malice.,, (Liaqat Ali o. Gopernment of find through Secretnry, Home, PLD 1973 Knrnchi 78). (Ettrphasis proztided)

(ii)"The right of a person to a petition for habeas corpus is a ligh prerogatiae right and is a Constitutional remedy for all matters of illegnl confinement. Tltis is one of the most fundamental ights knoun to the Constitution. Tlrcre being limitation placed on the exercise of this Y ight, it cannot be imported on the actual or assumed restiction urhich may be imposed by any subortlinnte kgislature. If the anest of a persofl caflfiot be lustifieil in lazo, t\rcrc is no rcason uthy that persott should not be able to inaoke the jurisiliction o/ the High Court immediately flr the restorl.tion of his liberty which is his basic right. ln all cases where a person is iletaineil and he alleges that his ileteation is uflconstitutional anil in oiolafion of the safeguards proaiiled in the Constitutiofl, or that it does not fall zuithin the ,tatutory requirernents of the lazo under uhich the detefltior is ordered, he can intoke the jurisdiction of the High t

Court, uniler Article 799 anil ask to be released Jorthwith, (pLD 1965 Lah. 135). He need. not unit for tlte opinion of the Aduisory Bonrrl -{ hefore praying for n habeas corpus. (AIR 1952 Cal. 26). iozoet,er, jurisdiction of High Court zohile examining the material before the rletaining authority is not unlimited. Wtn an order pnssed hy an etecutiae nuthority detnining a portiu ar person is chaltenged by irutoking extraordinary jurisdiction of High Court it is ahoays b11 meais of judicial reuieru and cntnot be trented. as appeal or reuision. Tln Court cannot substitute its discretion for that of adninistratiue ngent. The only function of the Court in such cases is to see whether or not order of detention is rcasonable and objectioe,', (pLD 1979 Lah. 74L. (Emphasis proz,ided).

(iii)"The Court can see zohethet the satisfaction about the existence of the requisite condition is a satisfaction really and truly existing in the mind of the iletaining authority or ote merely professed by the detaining authoity. (AlR 1953 SC 451) A duty lns beett cast upon the High Cottrt u,heneaer n person detnined in custorly in tlrc Prodnce is brougltt before that Court to ,,satisfy itself that he is not being held in custoily without lato/ul authority or in an utlawful mannet." This Constitutional dtty cannot he dischargetl nterely by saying tlnt tlrcre is an order ruhiclt says thnt he is A beirtg so detained, lf tfu mere production of an order of tletaiting autlnrity, declnring that he zons satisf.ed, zpas to be lwld to be sufficient also to " satisfy" the Court than uhat u,ottkl be the function tltat tlrc Court runs expected to perform in the disclmrge of this duty. Therefore it caflflot be said that it woulil be unreasonable for the Court, in the proper exercise oI its Corrstitutional iluty to insist upon a rlisclosure of the materials upon zohich the authoity had acteil so that it shoulil satisfy itself that the authority hail not acted in an " rnlawful manner". (Abdul Baqi Baloch u. Gorernment of Pakistnn PLD 1968 SC 313). (Emplmsis proztided).

(ia)'High C.ourt cannot claim in the exercise of ruit juisdiction to usurp the lunctions of the authoi$ in uhich power has been wsted nor to substitute their otttn decision for the decision of that authoity. Nor can thc Court insist on being satisfied that there were mateials upon which it itself uould haae tal<en the same action.It is in this sense that it has been said that the Court is not concemeil with either tfu adequacy or the suficiency of the grounds upon uhich action is talcen. The Court in order to be satisfed as required by the C,onstitution must know that there ruere in fact grounds relatable to the purposes of the statute upon ahich the action of thz authoity concernetl could at all haae been founded after an honest application of the minil of the authoitg conc*neil to all the releaant ansiderations. The question houwser, that still remains to be considered is as to rohether the reasonableness of the action can be examined afizn the statute itself does not require the authoity to dct upon reasonable grounds but leaois him to act upon his oin subjectiae satisfaction. In oiezo of the prooisions of Article 799 of the Constitution that degree of rcasonablmess has at least to be established which has been inilicateil in the case of Abdul Baqi Baluch PLD 1968 5C 31.3 Otlunuiy if an authoig could prutect himself by merely saying that he belieaed himself to be acting in pursuance of a statute then uthat zoould be the mateial upon which the Court could say that it uas satisfed that the detention or impugned action had not been taken in an unlaarful manner. The presumption is that eaery impisonmmt without trial anil conaiction is pima /acie

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ylla$y\" (Goaernment of West pakistan a. Begum Agha Abdul Kaim Shoish Kashmii PLD L96,9 SC U), (Emphasis prooidei).

(ln the case of Abdul Baqi Baluch pLD 7968 SC 373 it was indicated that it is.for the High Cnurt to consider as to whcther there were grounds upon uhich.any reasonable person could haae been satisfied ai to the ne ce ssi ty of deten tion)

Test to be applied.

"There coulil be no other opinion that it is for the High Court to examine uthile exercising its Constitutional luisiliction the mateial on which the satis/action of the itetaining authority is baseil anil hail to iletermine whether it was sufficient for the satisfaction of the iletaining authoity. kt we mintion heie at this juncture that when a piailege is claimed eoen the High Court zttould. be competent to examine the document / mateial regartling which priailege is sought in order to determine as to whtther such pioilege is beiig claimed in adobedly, lightly or as n matter of routine. ln thii regard zri ay foytifed by the dictum laid doton in PLD 19689 SC L4; Abiul Baqi Balcoh o. Goaemment of Pakistan (PLD 1968 SC 3L3); National Bank a. Faidsons Limited 20 DtR SC 249. The High Court can examine the rcasonableness of the grounils of iletention so as to satisfu itself that the detenu has flot been helit in arctody withoui - lawful authority ot in an unlawful tnaflrrer, It is not ihe satisfactioi of only iletaining authoity but juilicial conscious is also requireil to be satisfieil anil thus in our opinion the satisfaction of iletaiilng ailthortty shoulil haae been based on actaal anil rcat facts anit nit on mere suspicion, doubt or coniectaral presumptions.,,(bold added)

20.Keeping in view the above legal test which in a nut shell is whether the court is satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making thc- order of preventive detention when placed in iuxta position with the material relied upon i.e. the SSP's letter and the intelligence report both of which u,c have discussed above and keeping in view the actual ground reality at the time of issuing the order which could easily have been found out i.e that the opp and its chairmen had already been provided fall proof security; that none of the persons sought to be put in the Order had been back to Opp or its area in the 9 days since their release; that no actual threats had been receivecl by any a of the OPP persons in that 9 day period by any of those persons whose names were sought to be put in the Order or on their behalf we find that no reasonable person would have been satisfied that the material placed beforc him justified the issuance of the Order under the MpO which is under challenge and as such we find that the Home Secretary failed to applv his independent mind sufficiently to the material before him let alone seek further

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information; that the police acted malafidely in its over zealousness to appease the public and the media without giving sufficient weight to the libertv of thc

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petitioner and the others named in the order (despite proving fall proof security to the OPP and its Chairman prior to the Order) and the whole exercise leading up to the issuance oI the order was a colorable exercise of authority by the executive especially as mentioned earlier no reasonable person based on the material which was placed before the Home Secretary could have been satisfied of the necessity of issuing the order and as such the order is held to be passed without lawful authority and is hereby struck down.

21,. These are the reasons for our short order dated 12.L2.2022 which is spt out below for ease of reference;

"We have heard learned counsel for the petitioner, Additional Advocate General Sindh as well as the eiplanation '1 from the Inspector General of police and Secretary, Home Department, Government of Sindh for detaining the petitioner and others under the MPO.

For the reasons to be recorded later, we hereby declare the impugned MPO dated 01.12.2022 passed by the Secretary, Home Department, Government of Sindh to be illegal and passed without lawful authority and hereby strike down the same. However, it is made clear that the police shall continue to provide full protection and security to Ms. Aqeela and other members of Opp as is there lawful duty."

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